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Real Property > RP: Non- Estates > Flashcards

RP: Non- Estates Flashcards

1
Q

Non-Estates (Non-possessory interests)

A
  1. Easements
  2. Profits
  3. Covenants
  4. Rents
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2
Q

Easements: When granting an easement the grant should state the following information:

A
  1. If Easement or possessory estate
  2. Location of the easement*
  3. Scope of the easement
  4. Duration of the easement
    * A precise description of the servant land is required, but not necessarily a precise description of the location of the easement on the servant land.
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3
Q

A Profit A Prendre:

A

Similar to easement, except it allows the holder to extract some natural resource from the land. Follows same rules as easements.

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4
Q

Appurtenant:

A

The dominant land is BENEFITED by the easement.
The servient land is BURDENED by the easement
The easement is appurtenant to the benefitted dominant land.

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5
Q

Easement in gross

A

An easement which is not appurtenant to any specific land
ex. railroad tracks and power line easements
Such easements cannot be transferred unless they are for a commercial purpose

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6
Q

Sales of Land Subject to Appurtenant Easements: After the easement has been created assume the dominant land is sold by A to A2, but the easement is not mentioned in the deed. What happens to the easement?

A

The easement goes with the Dominant Land AUTOMATICALLY.

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7
Q

Assume the servient land is sold by B to B2, but the easement is not mentioned in the deed. Is B2 subject to easement?

A 
B2 will take subject to the easement if B2 has NOTICE of it when B buys the lot. 
Three ways to get NOTICE:
1. see it
2. recorded
3. actual knowledge.
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8
Q

Creation of easements: what are the ways?

A

PINE– four ways:

  1. Prescriptive
  2. Implied
  3. Necessity
  4. Express
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9
Q

Express Grant and Reservation:

A

SoF applies to them.
Express Grant: The owner of the servient land “grants” the easement to the owner of the dominant land.
Express reservation: owner of both lots grants out the servient land but retains an easement over it.

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10
Q

Assume developer owns both lots. he sells Lot 6 to A. Later, when he is about to sell lot 7 to B, A asks developer to get A an easement over Lot 7. what is this called?

A

This is an attempt to RESERVE an easement in favor of a THIRD PARTY and is VOID>

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11
Q

Implied Grant: 4 elements:

A
  1. Common ownership
  2. A continuous quasi-easement before the lots were split.
  3. The use is visible/obvious
  4. The easement is reasonably necessary to use of the dominant land.
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12
Q

Assume A owns both lots and constructs the houses and driveway. Some time later A sells servient land and keeps dominant land. The driveway is not mentioned in the deed. After the sale, B attempts to block off the driveway and prevent A’s use of it. What will A do?

A

A will claim an easement by Implied reservation. Same elements as Implied grant apply.

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13
Q

Assume A owns both lots and lives on dominant land. For many years she looks out across the servient land at a lake. Then she sells the servient land to B and keeps dominant land for herself. B wants to build a tall house that will block A’s view of lake. Does A have an easement, why or why not?

A

A does not have an easement by implied reservation for an unobscured view because the quasi-easement requirement is lacking. No tangible activity was happening on lot 7.

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14
Q

Easement of Necessity

A

purpose is for access and utility lines

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15
Q

To get an easement of necessity, owner must show:

A
  1. common ownership before he bought the land (e.g. subdivision )
  2. The land is LAND-LOCKED
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16
Q

Easement of prescription:

A

Similar to adverse possession but based on mere use, not possession.

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17
Q

Elements of an easement by prescription:

A
  1. Continuous or regular for AP period
  2. Open and Notorious
  3. Non-permissive (must be trespassing)
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18
Q

Assume dominant land owner has no legal easement, but begins driving her car over dominant land without permission. How can servient land owner prevent servient landowner from obtaining a prescriptive easement?

A
  1. physically block off the driveway (before AP period has run)
  2. Bring an action for an injunction (before the AP period has run)
  3. Give the trespasser permission and have her acknowledge it (before AP has run)
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19
Q

Scope of easements

A

A reasonable change in the technology is okay.
Reasonable use is okay.
Different type of use than what was granted is NOT within scope.

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20
Q

If dominant owner makes an excessive or unreasonable use of the driveway easement, what are servient owner’s remedies?

A

Damages or injunction; but not termination of easement.

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21
Q

Assume dominant owner as a driveway easement. She purchases the lot next to her and expands the house on her lot to cover both lots. May she use the easement to benefit the lot beside original lot?

A

No– Never use easement to benefit land other than the ORIGINAL Dominant land.

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22
Q

Assume dominant owner has a driveway easement. She subdivides Lot 6 into four smaller lots and sells them. May new owners use the easement?

A

Yes if it’s reasonable increase in use.

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23
Q

Exclusive and nonexclusive easements

A

Is the easement’s owner is the only person allowed to use the easement is EXCLUSIVE.
IF the servient landowner is allowed to use it, it is non-exclusive.
Easements are PRESUMED to be nonexclusive.

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24
Q

Repair of easement: Assume dominant landowner has a driveway easement of servient lot, and the pavement is cracking. Who has the responsibility to repair the easement?

A

If the easement is exclusive and dom. owner is only user then dom owner must repair it.
*She also has an implied license to reasonably enter serv. lot to make prepairs.
If non-exclusive– court will equitably apportion the repair costs between the two owners.

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25
Q

Termination of Easements: Assume owner has a driveway easement over servient land.
If dom owner buys serv. land.?

A

The easement is terminated by merger.

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26
Q

Termination of Easements: Assume owner has a driveway easement over servient land.
If dom owner decides she no longer needs the easement and conveys it back to servient owner by a written deed.

A

Easement is terminated by release.

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27
Q

Termination of Easements: Assume owner has a driveway easement over servient land. She decides she no longer needs the easement, and orally states to serv owner that she is conveying is back to him. IN reliance on this statement, serv. owner spends money on removing pavement and putting in new flower garden.. what result?

A

The easement is terminated by estoppel (SoF is satisfied).

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28
Q

Dom owner ceases use of the easement for 10 years, and converts her garage into a spare bedroom.

A

Easement is terminated by abandonment provided two elements:

  1. A long period of non-use.
  2. Some additional evidence of dominant intent to give up easement.
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29
Q

servient owner builds a wall which blocks off dominant owners easement and it remains in place, with no permission from dom owner for ten years.

A

The easement is terminated AP.

30
Q

If a new public road is built and touches the landlocked pan then?

A

The easement of necessity is terminated because there is no more necessity

31
Q

What is a license

A

NOT an interest in land, but merely permission from the owner to occupy the land (usually for a temporary and limited purpose).
REVOCABLE.

32
Q

How can a license be created?

A

It can be created any way including Oral (does not have to satisfy SoF).

33
Q

If a license is interfered with what can the owner of the license get?

A

May get damages at most (if it breaches a contract).

34
Q

Assume B intends to gie A an easement by express grant for a driveway. However, the grant is merely oral, and hence fails to comply with the SoF. What result?

A

It not a valid easement, but merely a license. However, if in reliance on the reasonable belief that she as an easement, A spends 2K paving the driveway and installing a curb cut. A NOW has an EASEMENT BY ESTOPPEL.
*reasonable detrimental reliance

35
Q

Covenants: Assume B promises A that B will not raise pigs on B’s lot. What should this covenant include?

A
  1. Should be in writing
  2. be given for consideration
  3. Be notarized (to be recordable)
  4. State that it binds & benefits future owners of the parcels.
36
Q

To enforce or have a successful action on a covenant– must have:

A

a. P with benefited land and
b. D with burdened land
* *VERY IMPORTANT TO KNOW WHO IS WHO.

37
Q

Covenants:

1. If neither lot has been sold, and B raises pigs, Can A recover?

A

A can recover without regard to whether the covenants run with the land because they are original parties.

38
Q

If A sells dominant land to A2 and B raises pigs on serve lot, what must A2 show to recover from B?

A

That the benefit runs with the benefited land.

39
Q

If B sells servient land to B2 and B2 raises pigs, what must A show to recover from B2?

A

That the burden runs with the burdened land.

Court will deny enforcement for damages because No horizontal privity.

40
Q

If A sells dom land to A2 and B sells serve lot to B2 and then B2 raises pigs, what must A2 show to receiver from B2?

A

That the benefit runs with the benefitted land and that the burden runs with the burdened land.

Court will deny enforcement for damages because No horizontal privity.

41
Q

Rules for covenants at LAW (damages sought)

A
  1. touch and concern the land
  2. Intended to run (presumed)
  3. Horizontal privity of estate (only required for burden to run).
    * Note: as a practical matter, notice to the burdened party is required at a law as well, since under most recording acts, an unrecorded covenant won’t be binding on a bona fide purchaser.
42
Q

Rules for covenants in Equity (injunction sought)

A
  1. Touch and concern the land
  2. Intended to run (presumed)
  3. Notice to burdened party.
43
Q

Horizontal Privity:

A

Either:

  1. The original covenant is in a deed that transfers of one of the parcels of land, or
  2. the original covenant relates to an easement that one of the parties has on the other’s land.
44
Q

Subdivision Problems: Assume Developer sells the lots in the subdivision above in numerical order, and places in most of the deeds a covenant that the lot may be used only as a single-family residence. The develop has created a common plan which means:

A
  1. The lots are close together
  2. The lots are all about the same size
  3. The deeds of most or all of the lots have similar covenants.
45
Q

Advantages of Common Plan:

A
  1. All the lots in the common plan are considered to be benefited land with respect to all the covenants on all the other lots in plan.
  2. After Developer has sold the first few lots with similar covenants, and sells the last one with no covenants –the other owners can enforce the covenants–called RECIPROCAL NEGATIVE EASEMENT. (notice from appearancee of neighborhood)
46
Q

Termination of Covenants:

A
  1. Merger: same owner buys all lots in subdivision
  2. Waived or Leased: If one owner obtains written permission from all other owners in the subdivision.
  3. Abandonment/implied waiver: if covenant is broken but none of the neighbors sue or complain.
  4. Changed neighborhood conditions (unclean hands defense).
47
Q

Adverse Possession

A

Is based on the running of SoL for an owner’s action in ejectment. Avg time 10 years.

48
Q

Five Elements of AP

A
  1. Open and Notorious
  2. Continuous
  3. Exclusive
  4. Actual
  5. Non-Permissive (Hostile)
49
Q

Constructive AP

A

AP can adversely possess entire tract of land even though only occupied one small portion of it if:

  1. Entire tract is ONE parcel in the public records
  2. AP has color of title to the entire tract
  3. AP actually possesses part of the tract.
50
Q

Sale of Land with AP on it:If TO owns land with AP on it (5 years) and then sells to X. Does the 10 year statute begin over again when X buys?

A

No, keeps runnning

** Don’t buy land with AP on it or you’ll be out of luck.

51
Q

People who don’t lose their lands to AP:

A
  1. People under legal disabilities (infancy, insanity, imprisonment).
  2. Future Interests
  3. Severed Mineral Estates
  4. Government land
52
Q

When does statute of limitations on someone who had a legal disability begin to run?

A

When all disabilities end but the owner is protected from the AP only if the disability existed on the day that the AP moved on land.

53
Q

Land owned “by A for life, remainder to B.” An adverse possessor moves on to the land and remands or the limitations period, during all of which A remains alive. What does the AP now own?

A

AP owns A’s life estate. To get a fee simple title, AP should wait until A dies and stay 10 years against B.

54
Q

A owns land in fee simple and executes an oil and gas lease to an Oil Co. (this severs mineral and surface estates. Later AP moves on to the surface of the land and possesses it for stat period. What dos AP own?

A

AP owns surface estate.

55
Q

What must AP do to acquire title to the subsurface estate?

A

Explore for, or extract mineral from, the surface estate–basically go down – basically trespass.

56
Q

Tacking: How can APs tack their time on land?

A

With Privity! Privity can be established by: a deed, a will, intestate succession, or even an oral conveyance from AP1 to AP2.

57
Q

Racking of Tenant’s possession to LL: AP moves onto land and stays 5 years; then AP leases the land to a tenant, who remains for 5 more years, paying rent to AP. What result?

A

Tenant’s possession is attributed to the LL.

58
Q

Mesne Profits: AP adversely possesses land for the full time period, doing much damage and collecting rents. IS AP liable to the former TO for trespass to profits?

A

NO.

59
Q

Recording Acts:
Assume O owns land, and sells it to A by deed on day 1. On day 2, O deeds the same land to B. In a jurisdiction without a recording act, who owns the land?

A

A because O didn’t have title when he passed it to B. However, this result can be reversed by the recording acts.

60
Q

Types of Statutes: What facts must exist in order for B to have priority over A?

A

In ALL states, A must fail to record.
Also:
Notice: B must be BFP (pay value and take without notice)
Race: B must record first
Notice-Race: B must record first and be BFP

61
Q

All unrecorded conveyances are void as against… a subsequent purchaser for value and without notice

A

Notice statute

62
Q

All unrecorded conveyances are void as against.. a subsequent purchaser who records first

A

Race statute

63
Q

All unrecorded conveyances are void as against… a subsequent purchaser for value and without notice who records first

A

Notice-race statute

64
Q

O deeds to A (unrecorded), O deeds to B (BFP, but unrecorded). A records, then B records. Who prevails?

A

B prevails in NOTICE state

A prevails in RACE state

65
Q

Assume A obtains an interest in land from O by a non documented method of transfer. Later O deeds the land to B. B is a good faith purchaser for value without notice, and B immediately records B’s deed. B still won’t be protected from A’s non documented interest, such as:

A
  1. Title rising by AP
  2. Prescriptive easements
  3. Implied easements
  4. Boundary adjustments by acquiesce or by oral agreement

**Nondocumented titles are not subject to the recording acts.

66
Q

Bona fide purchaser status: paying value

A
  1. Must be more than nominal value
  2. Loaning money is value (contemporaneous debt)–cannot be value given prior to deed.
  3. Satisfaction of antecedent debt–> unsecured note.
  4. Judgment lien–> does not prevail–didnt give value.
  5. Judgment sale–> X buys property–X prevails because paid value.
67
Q

O deeds to A, who fails to record. then O deeds to B (who has notice of A). B deeds to C (who pays no value). C deeds to D, who is a BFP and records before A does. Will D prevail over A?

A

YES, because you don’t have to deal with original grantor to still win.

68
Q

Taking without notice:

A
  1. Actual knowledge
  2. Inquiry
  3. Recording knowledge
69
Q

Shelter Principle: O deeds land to A, who fails to record. Then O deeds the same land to B, a BFP who records first. B now wishes to resell land to C, but C has actual knowledge of A’s prior deal. If C buys from B, will C be protected from A’s claim?

A

Yes because shelter principle says we only need one winner. Once made a winner, can give good title.

70
Q

O deeds land to A, who fails to record. Then O enters into an installment K sale of land to B. B agrees to pay $10K per year for 5 years. After B has paid the second annual installment, A records A’s deed.
Is B held to have constructive notice of A’s recordation?
How will courts protect B pro tango, to the extent of the payments B has made?

A

No–search for title before K not after.
Three ways to protect B’s payments made:
1. Make A and B tenants in common for his share.
2. Give B a lien to recover his payments already made.
3. Allow B to obtain title by making the remaining payments to A.

71
Q

O owns valuable land, but is in debt. O deeds land to B , who is O’s brother, for a price that is far less than FMV. O is left involvement by transfer.

A

This is a fraudulent conveyance, and will be set aside by the court at the request of O’s creditors. Notice two factors: less than MV and left O insolvent.

Real Property (5 decks)

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